© BEYKENT ÜNİVERSİTESİ / BEYKENT UNIVERSITY
THE AMENDMENTS IN THE TURKISH LEGAL SYSTEM IN
THE CONTEXT OF THE EUROPEAN UNION MEMBERSHIP
PROCESS: ACHIEVEMENTS AND FAILURES
[*
]Assoc. Prof. Dr. Yücel OGURLU
[**
] ABSTRACTWithin the framework of Turkey's full membership into the EU, the economic, social, political and fiscal requirements asked from Turkish Governments are largely related to legal system. The constitutional amendments in post 2000 era have been an embodiment of ongoing struggle on human rights. Under this conceptual framework, this paper presents an analysis of the modifications made in Turkish legal system by the means of a series of constitutional amendments and legislative changes.
It is a subject of hot discuss to what extent the harmonization program has achieved these targets and to what extent domestic and international expectations were met. The post 2000 amendments and changes in the sphere of law function as a means of transformative power in other spheres like economic, political and social areas. While human rights-centered amendments in constitutional law and following changes in criminal law are welcome, those in administrative law field are not at the same level.
In this article, I will try to shed light upon the meaning and effects of the constitutional and legal amendments and the tensions arising within this context in the post 2000 era. However, my purpose is not to create a chronology of Turkey-EU relations, but just to present a brief summary of that relation before the main subject.
Keywords: Constitutional amendments, human rights, Turkey-EU relationships
ÖZET
Türkiye'nin Avrupa Birliği'ne tam üyelik süreci çerçevesinde, Türkiye'den beklenen ekonomik, sosyal, siyasal ve mali gereklilikler, hukuk sistemi ile de önemli oranda ilgilidirler. Türkiye'de anayasa ve mevzuatta 2000 yılı sonrasında yapılan hukuki değişiklikler, özellikle insan hakları merkezli, süregiden bir çalışmanın somutlaşmasıdır. Çalışma, bu kavramsal çerçevede, sözügeçen dönemde yapılan anayasal değişiklikler ve mevzuattaki diğer değişiklikler dizisi aracılığıyla Türk hukuk sisteminde yapılan dönüşümün bir analizini sunmaktadır.
Sözkonusu hedefler ile yurtiçi ve uluslararası beklentilerin ne kadarının karşılandığı gündemin her zaman sıcak konularından birisi olmuştur. 2000 yılı sonrasında hukuk alanında yapılan değişiklikler, ekonomik, siyasal ve sosyal sahalar gibi hukukun dışında kalan diğer alanları da dönüştürücü bir güç olma görevini yerine getirmiştir. Anayasa Hukukunda yapılan insan hakları merkezli değişiklikler; Ceza Hukukunda ve onlarla aynı seviyede olmasa da İdare Hukukundaki diğer değişiklikler AB tarafından olumlu bulunmaktadır.
Bu çalışmada, 2000 yılı sonrası hukuki değişiklikler bağlamında, anayasal ve yasal değişikliklerin anlam ve etkisi ile, bu çerçevedeki diğer tartışmalara ışık tutulmaya çalışılmıştır. Bununla birlikte, çalışmanın amacı, bir Türkiye-AB ilişkileri kronolojisi oluşturmak değil, ana konu bakımından, ilişkilerin kısa bir özetini sunarak değerlendirmektir.
Anahtar Kelimeler: Anayasa değişiklikleri, insan hakları, Türkiye-AB İlişkileri
[*] This paper has been presented at the International Symposium's Panel I on "Turkey:
Turkey -European Union Relations", The 2007 Middle East & Central Asia Politics, Economics,and Society Conference, September 6 - 8 2007, University of Utah, Salt Lake City, USA. Here below, it is with some changes in references.
I. INTRODUCTION
Considering its historical background, Turkey has been under a great influence from the West for about two hundred years. Following the establishment of EEC after WW II, Turkish relations with this supranational Unity underwent such a big transformation that ordinary international relations have been left behind and a new mode of relation between the sides has started to be shaped: relations characterized by ordinary international relations were replaced by supranational ones.
In this article, the focus will be on the reform sphere that arises from constitutional and legislative changes that is a very crucial point that Turkish side emphasizes for EU membership. In fact,, each subheading in this article is wide enough to be dealt with in a separate article; thus they will be mentioned only with their names, but not analyzed in detail. However, it will be dwelled upon the basic subjects such as fundamental freedoms and the contemporary approaches to the relations between the state and individual. On the other hand, I will try to expose what these relations mean for both sides comprehensively. Presenting the brief chronology of the "rise and fall" relationship with the milestones will make it easier not only to follow but also to understand the meaning of the modifications and amendments in Turkish Law. However, my purpose is not to create a chronology of Turkey-EU relations, but just to present a brief summary of that relation before the main subject.
Turkey applied to EU membership as early as 31 June 1959 and that application was accepted the same year and the preliminary consultations were started. The main consultations began on 13 January 1972 and Turkish side applied to EU for full membership on 14 April 1987. Nevertheless, the process went on with some zigzags because of some domestic political instabilities such as military interventions (two) and Cyprus War 1974 (and concomitant crises) in this
period. Even though the issue of the EU membership of Turkey loses both domestic and international support from time to time, it illustrates a supply-demand graphic taking shape in accordance with expectations and concerns in international level and mainly economic concerns of Turkish people.
Post 1990 relations turned into an intensive relationship that aims at quality rather than just fulfilling the requirements for EU membership. In this period, Turkey demonstrated its decisiveness and thus the process accelerated. One of the clear-cut indicators of that acceleration is the approval of Turkey-EU Custom Union Agreement on 13 December 1995. (Kırışman; Özen, 2005:123) In this way, Turkey, apart from other candidates, is the first country that accepts the CU and exposed to unilateral commitments before the candidacy process and therefore, illustrates how decisive and serious about the membership Turkish side is. In December 1999, The EU Helsinki Council, after long debates, officially declared that Turkey is an EU candidate country with equal status as other candidates. (Öner, 2004:27; Ulusoy, 2005:1)
In December 2000, the EU General Affairs Committee accepted Association Agreement Document with Turkey; Later, Revised Association Agreement Document was put into process on 12 June 2003. In this way, an important step has been taken for Turkey's membership. (İKV, online 01.08.2007)
It was stated in European Commission's Recommendation Text on Progress and Impact Reports on 6 October 2004 that Turkey fulfilled the political criteria and upon those accession negotiations with Turkey. As the first step Turkey was recommended to open a screening process and it was started with science and research on 20 October. While the screening process was going on, many opposing opinions on Turkey's membership were put forward from "no membership forever" to "privileged partnership" (Karakas,online 2007:5;
Seyrek, online, 2007:3); and a full membership to the EU could be in 2013 with
the most optimistic estimate.
It has been widely made an impression in public opinion in Turkey that economic and political criteria expected from Turkey are apart from those of other candidate countries whose economies are very similar to Turkish economy
(Çınar, 2005:17). Although East European countries, which are highly
undeveloped in comparison to Turkey, are welcome to EU membership very rapidly, the fact that Turkey is still waiting at the door causes disappointment and weariness. In addition, according to those opinions, Turkey suffers from ethnic and religious prejudice of Europeans; hence, the relationship became a "one sided love "; this transformation triggers a process that will end up with an inevitable separation. And that progress is closely observed particularly by various groups; those with economic expectations and those with political expectations (the liberals, moderate Muslims, ethnic and marginal groups). It has been considered by different groups that the amendments and changes in legal issues are containing both threats and opportunities for Turkey and when the amendments within the legal system are concerned, the describing element of the relations between EU and Turkey is that of 'love and hate'.
No doubt that the expectation of EU from Turkey is centered on political transformation of Turkey; however, Turkish side insistently focuses on economic and legal transformation. In spite of these contradictory positions, a rapid progress is still going on. However, to me, the proceeding years of 2000, the willingness of different governments to maintain the programs sounds like a proof of a consensus and common will in Turkish Parliament..
Even if the harmonization process of Turkish law to EU legislation seems relatively a trivial beginning in the struggle of Turkey for the EU candidacy
process, it is actually connected with a quite wide area, because at the same time, it requires a long term transformation process. In this frame, Turkey started a period of transformation in which all of its legislation was tried to be harmonized with the EU requirements, and these are called "harmonization packages". (Karluk;Tonus, 2004 :6-8) Today, there are still efforts to complete
the opened negotiations about the "harmonization packages" following one another very fast. The law, as a slow and hard changing area -in Turkey and in similar developing countries- has been transformed very rapidly in decades, especially in the second five years.
1. The Dynamics of Transformation
By taking European countries as a model, the codification studies was concluded by the 1930s and that legislation was kept without any changes, but in the course of time the legislation became insufficient and only some slight changes were realized. It was tried to be restored by changing only some articles of the old laws by the end of the 1990s, and in this way, the reform demand coming from the society was tried to be met. Once this scene assessed, it can be said that the social and economic needs did arise first, and then, the changes in law came under the heavy pressure of the transformation of socio-economic structure. This process embodied itself in the modifications and amendments more frequently in legislative area soon after Turkey passed to free market economy and political democracy. From then to the end of the 1990s it has appeared as a scene of classical transformation with a low tempo.
While slight modifications in the legislation from 1960 to 1990 were worthwhile, the modifications from 1990 to 2003 aimed at restoring outdated provisions of legislation in a low tempo. In this period, it was tried to meet partly the necessity for the raising trend of extension of human rights and fundamental freedoms all over the world in the late 1970s.
Thereby, Turkish law kept to be fostered mostly from German, Swiss, French and Italian domestic laws by the end of the 1990s. However, its transformation went on entirely under the influence of national dynamics. Whereas ongoing process of modification, that was highly accelerated during the period 2000-2007, was composed of the modification for harmonization process to the EU. In fact, it is seen that almost entirely under the effect sphere of the EU law system and -not other countries- the EU legislation was directly accepted as a base and foundation in the last two decades; thus, both an effect and a foundation the external dynamics had an increased effect.
From this point on, I will focus on the extension and dimensions of the transformation under the influence of the EU law. Needless to say, it is impossible to exhaust all the reforms in hundreds of acts achieved so far, thus we will just select certain issues which were of importance in that transformation.
2. The Scope and Dimension of the Transformation of Law a. The Transformation of Law as Means
The EU accession negotiations were opened with Turkey on 3 October 2005 on 35 titles which cover whole socio-economic life from customs and environment to agriculture and free movement. Thus, it requires changing almost all legal regulations about relevant titles. That means new laws, amendments or changes are firstly required to be rearranged for advancing any titles such as agriculture or fiscal policy. That also means that new laws on every new opening title are required to be revised and made changes in relevant areas. In that case, the law is a means that ensures to provide the harmonization of each title. On the one hand, as a result of that, the law leads to transformation, and on the other, it
completes the transformation. From this point on, the law functions as an "altering and changing" means.
To the extent that the law functions as a transformative means in all areas, it is also transformed by itself. Thus, one of the titles of the screening has been "Judiciary and Fundamental Rights". Under this title, a detailed screening meeting has been held in Brussels in October 12-13, 2006:
- Firstly, in the scope of Judiciary, the autonomy and impartiality of judiciary, quality and effectiveness of judiciary and Judiciary Reform issues have been screened.
- Secondly, struggle against impropriety and the judicial and administrative reforms on fundamental rights have been screened.
- Thirdly, under the title of fundamental rights, fundamental human rights, rights of children, access to Justice, procedural protection measures, minority rights, cultural rights, and finally, protection of personal information have been screened.
- Lastly, under the title of the rights of citizenship, right to voting and right to be elected in local elections and free movement and right of diplomatic protection in the EU have been screened. (iKV, online, 01.08.2007).
Besides a modification in legislation, it is expected that the law will turn into a qualified public service with the use of ITC technologies. In this frame, all the phases of judiciary can be carried out with technologies in National Judiciary Network Project. (Ogurlu, 2007: 402)
b. Transformation Coming with Harmonization Packages
The essential modifications carried out in both Private and Public Law are considered to be attempts for harmonization with the EU law and to meet social requirements. On the other hand, many subjects which were criticized for years by the Turkish law scholars have been changed. The changes or attempts for changes are totally in key areas that have great importance in Turkish law such as civil law, penal law and administrative law as well as constitutional law. The most important step to fulfill the demands of the Copenhagen political criteria is the major revision of the Constitution. Two crucial constitutional reforms in 2001 and 2004 and eight following legislative packages were adopted by Turkish Parliament. Changes in several laws, regulations, decrees and circulars followed them. (2004 Regular Report, 2004:164.) Thirty-four Articles of the Turkish Constitution have been amended within the package of constitutional amendments aiming at revising the essential issues such as improving human rights, strengthening the rule of law and restructuring democratic institutions. (Tanlak, online, 2001: 4-5)
The New Turkish Civil Code 4721, as a main law of Private Law, changed all the démodé provisions which came into force in this period.
The New Penal Code 5237 and the Code on Criminal Procedure 5271 came into force in 2005. In addition, related to 170 acts were revised with The Law on Changing of Several Acts for Harmonization to Basic Penal Acts.
Following 2002, the harmonization packages one after another revised almost every field. Particularly, 2nd, 6th and 9th harmonization packages have a very broad scope and they were well discussed in public opinion (Emerson;
It denoted the facilities for other "languages and cultures apart from Turkish language and culture" . They will be permitted to the association depending on ethnic origin by a change in old Association Act which prohibited this sort of associations in the 2nd harmonization package. 6 th harmonization package which modified 10th acts and 8 th article of Struggle against Terrorism abrogated. Changes covered the area of radio and TV broadcasting in languages and dialects other than Turkish.
22nd term Legislation Year of Parliament was the year of the most radical and effective decisions. This term includes 261 acts which mainly aim at harmonization with the EU legislation. The 9th harmonization package is the most extensive one. It is emphasized in the general reason of the act that the modification aims at providing harmonization to the 13 th Protocol to The Convention of Protection of Human Rights and Fundamental Freedoms and last constitutional amendments. In addition, other acts were modified according to these modifications. In the frame of relevant package, Turkey signed Protocol No. 13 with the ECHR on 9 January 2004, and concerning the abolition of the death penalty was signed on 9 January 2004.
- State Security Courts were abolished and some competencies of them were transferred to Serious Felony Courts.
- The number of the representatives of Military National Security Council was reduced and the membership of military officials to some councils and boards such as High Audio Visual Board and the High Education Board ended up with amendments.
Other regulations in the same period are as follows:
- Petrol Market Act was adopted in the Parliament and restored for free market rules in this sector under the criticism that foreign capital would abuse the Turkish underground sources.
- A new press law has removed the barriers in the freedom of expression in press and it was regulated in the constitution. The sanctions which were always criticized such as imprisonment and the closure of publications, the halting of distribution and the confiscation of printing machines were abrogated by the new law. The new and slight fines are replaced of them.
- An essential act for public interest, namely Access to Information Act which was subject to debates was initiated in 2004. Thus, citizens can easily get access to information related to themselves except state secrets.
-Very crucial acts about public administration such as The Base Law on Public Administration, The Law on Special Provincial Administrations, The Law on The Municipalities and Metropolitan Municipalities were adopted by the Parliament between the years 2004-2007. However, all these laws were vetoed by the President on the ground that the acts conflicted with the constitutional provisions related to the unitary character of the Turkish State. (2005 Progress
Report, 2005:11) After the second revision, the President prevented the acts by
sending them to Constitutional Court. The same result was valid for The Law on Public Employees that would change the entire public servant regime.
- The Law on Public Fiscal Administration was regulated in 2003 for providing the discipline of fiscal regime.
- The Ethical Board for Public Servants was established to enforce the code of ethics for public employees that entered into force in April 2005.
-The Law on Establishing the Intermediate Courts of Appeal came into force on 1 June 2005 for reducing the case load of the Court of Cassation.
- Electronic Signature Act prepared a good ground for both commerce and e-state.
- The new Law on Associations that contributes towards the strengthening of civil society initially passed in July 2004.
- New Police Duties and competence Act adopted in 2002 and Criminal Procedure Code provides the person who is arrested by the police with the right of accessing to justice, the prohibition of arbitrary arrest and informing of the reason for their arrest, informing their relatives and shall be brought before a court within twenty four hours.
- The new Violence in Sport Act that regulates highly detailed and heavy sanctions for prevention of violence in sport competitions was initiated.
- Some other new acts such as films, cultural establishments and cultural conservation areas were adopted.
c. Ongoing Studies
After The Ministry of Justice screened over all legislation by the end of 2006, 118 non-applicable acts were sent to sub-committee of The Justice Commission of The Parliament. The draft for Act on Abrogation of Some Acts Which Lost the Ability of Application was adopted in Parliament and thus 118 acts, which some of them are strange or funny for today, such as The Law on Marshall Aids and The Law on Paper Bags which are non-applicable were abrogated. In addition, 46 more rules were abrogated and 14.000 regulations were reduced to 4.500.
Moreover, there exist some other drafts in the subcommittees of the Parliament. The first draft about the EU acquis and international private law and procedure law which was prepared to modify some international agreements are also in the subcommittee.
New commercial code draft is also on the agenda as a plan.
Though Public Inspection Act (also known as Ombudsman Act) was not approved for the reason that it did not follow the Turkish constitutional system, but it was still adopted in the parliament later. Nevertheless, the Constitutional Court decided to stop the enforcement. The draft of the Public Administration Reform act is also waiting in line.
The transformation in the process of harmonization up today is not limited to the modifications and amendments. Turkish government that holds the power today declared the Harmonization Program to the EU acquis to public on 17 April 2007. The program which includes the legal modifications and regulations for Harmonization Program to the EU acquis during the 2007-2013 period is composed of 412 pages (iKV, online, 01.08.2007). It is clear that the issue of transformation and harmonization of Turkish law is becoming a public policy, after full membership -if it happens-, it will cover a long process.
As it is stated in the EU Progress report, a "significant progress took place also on the ground; however, the implementation of reforms remains uneven". (2004
Regular Report, 2004:164) In fact, most of the "uneven" problems arise from
the applicators who do not know the new changes exactly. In the course of time, the changes and amendments will be taken roots.
3. Some of the Supports and Criticisms
There have been both support and criticism from several groups and institutions for the various harmonization studies carried out until now. We will study these under two headings.
a. Supports
The hundreds of amendments and changes that have been carried out by the Turkish government in the context of harmonization to the EU have all been done with the support of the Parliament. In other words, the biggest supporter has been the Parliament itself. Public support, support of the EU centers of universities, support from some academics, and the continuous support of some NGOs such as iKV, TUSiAD and MUSiAD must be taken into consideration
(Terzi, 2006:17-18).
There are different levels of support from the judiciary itself. For example, it was mentioned by the High Court Chief Judge in 2003 that mission of the State Security Courts was over and these courts had to be cancelled and their files had to be sent to the Serious Felony Courts. The Chief Judge of High Court also brought attention to the urgent renewing and changing of many regulations that could no longer answer the needs of the society. These suggestions have been taken into consideration with the EU harmonization process and are being satisfied.
b. Criticisms
Although there appears to exist a concrete support of Turkish people for the EU membership, when it comes to the issues such as recognition policies and human rights with political consequences, that support is replaced with an observable opposition from many different groups. The main criticism towards this change
and transformation process is from a nationalist based criticism ground on a fear that it may lead to the separation of the state.
As the responses of the Government, to the claims by the opposition that the changes will cause "separation in the state", is that the changes do not originate from outside and do not only have the purpose of membership to the EU, but they are mainly for the needs of the public.
It is seen that in the sharpest opposition towards the changes in Turkish law made in harmonization for the framework of the EU legislation comes from the parties and groups that have nationalist and etatist roots. For that reason, the law, sometimes, as an issue of escalating tension both among opposing actors in Turkey and between the EU/Turkey (between etatist elites for example political elites, NGO's) is still a hot topic of the agenda.
Taking into consideration that these reactions are sometimes supported by different segments of the society, the factors that affected this must be emphasized. It can be seen that the anti-EU discourse rose especially during the time of the July 2007 elections and the observation can be summarized in five topics.
- First criticism is that western countries would exploit Turkey's economic reservoir and underground sources by the privatizations on behalf of them. - Second criticism is that the right given to ethnic groups would bring the country first to federation, then to separation.
- Third criticism is that the Turkish industry would be weakened against the strong EU members' industries.
- Fourth criticism is that the laws that were invoked as harmonization leave the police force ineffective and prevent the fight against ethnic terror.
- Fifth criticism is that the applications not even existing in the EU countries would be imposed on Turkey. For instance, there are some articles in the criminal codes of the EU member states like article 301 of the Turkish Penal Code which includes a provision about protection of State against terrorist, separatist and theocratic attacks.
4. Some Results from Changes
After the amendment in the Article 90 of the Constitution, the international conventions that are duly put into effect will carry the force such as the acts. That provides that when an international agreement has been ratified, it becomes an internal part of the domestic legal system and shall be directly enforced. This crucial amendment made the EU agreements an internal part of Turkish Legislation.
It is seen that Turkish law has begun to change as manner, understanding and style. Turkish law that has been released from the influence of German, French and Italian law is trying a new style alongside the EU law. For instance, it can be felt that a switch from French to American law in both administration and administrative law, a switch from Italian penal law to German penal law. However, while doing that, the main reference is always the EU legislation. -With the modifications from the Constitution to regulations, a more liberal model is trying to be formed. While the administrative structure is trying to be modernized, the state-centered regime is trying to be turned into more individual-centered one.
-The change, while causing old laws to become obsolete, has forced law-applicators to renew their knowledge on Turkish law.
As a conclusion, it is seen that Turkish Law is still going through a significant transformation process despite the resistance of some domestic actors. After the presidential election on 28 August 2007, Turkey, with a President who is very well known as pro-EU, has the chance that the process and progress of Turkey in the way of the EU will accelerate.
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